“Pornography addiction”: Naked rhetoric?

No one actually knows what percentage of Internet use is sexually oriented, or how much money the porn industry is making. Many commonly cited figures are widely exaggerated, and the true statistics remain murky and contested. Yet it's safe to say that for some portion of the public, the easy accessibility leads to habitual use that interferes with other activities, such as family life, relationships, work or school.

But no worries. Treatment providers are standing by to help. A quick Google search produces dozens of residential treatment programs for pornography addicts.

What's not so easy to find is the price tag. The sites I surveyed require that you call them, or submit an online application for more information. That reticence is not surprising, given that costs average about $675 per day, or more than $180,000 for the nine-month minimum stay that some programs recommend.

This burgeoning pornography addiction treatment industry is the latest example of the therapeutic opportunism that has swept across the United States, selling snake oil remedies for alcoholism, drug addiction, overeating, adolescent rebellion, and so many more problems of modern living.

Unbeknownst to a gullible and desperate public, this new treatment industry is largely unregulated, and its grand claims have scant scientific support. Indeed, its underlying theory of sexual addiction has been widely repudiated by scientific researchers.

In a scathing new critique in Current Sexual Health Reports, authors David Ley and colleagues challenge the scientific basis for the sexual addiction industry. They argue that the pathologization of visual sexual stimuli (VSS), as they prefer to call it, is more reflective of religious and moral values than science.  

Chicken or egg?

There is no question that many people are discontented with their use of pornography. About one in 200 Americans reports problematic viewing habits, according to Ley and colleagues’s estimates. The ambiguity is whether pornography is a cause, or a reflection, of life dissatisfaction. Supporting the latter possibility, for example, is a large-scale Dutch study finding that lower life satisfaction predicted greater use of online pornography, not the other way around. Similarly, people with more severe psychological problems and drug and alcohol use are more likely to be heavy viewers of visual sexual stimuli.

It makes sense that people might escape into fantasy not only for sexual release but also to avoid negative mood states such as loneliness. We have only to look to the wave of relationship-phobic soshoku danshi (literally, "grass-eating boys") in Japan and the technosexuals like Davecat (whose YouTube video has gone viral) who prefer robots or blow-up dolls to "organic partners" to sense the breadth of interpersonal alienation in contemporary culture.

Thus, pornography consumption is perhaps more a symptom than a cause of angst, and targeting it for primary intervention might distract from the deeper issues at play.

Ley and colleagues go further, arguing that a skewed focus on negative effects, such as erectile dysfunction and relationship difficulties, hides potential positive health outcomes of "sexual visual stimuli" consumption. Of relevance to forensic practice, there is some evidence that pornography viewing may reduce risky sexual behaviors, especially among individuals who report high levels of sexual sensation-seeking.

Stigmatizing sexual minorities?

One of the more intriguing topics raised by Ley and colleagues is the religious tenor of many treatment programs and advocates of the addiction paradigm. High religiosity turns out to be one of the strongest predictors of treatment-seeking for sex addiction, suggesting that conflicts over personal values rather than the use itself may be driving dissatisfaction.

Taking this one step further, they argue that the anti-pornography movement serves an ideological function of promoting certain values while suppressing others. Individuals reporting addictive use of visual sexual stimuli tend to be non-heterosexual males with high libidos and high levels of sensation-seeking. The sexual addiction model, they claim, is an effort to exert social control over technological expressions of sexuality, suppress marginalized forms of sexuality, and stigmatize sexual minorities.

Intriguing as this argument is, I am disheartened by polemics that minimize the dehumanization and degradation of women, in particular, that are the mainstay of pornography. As revealed by scholars Miranda Horvath, Peter Hegarty and colleagues, the messages about women in British "lads mags" are indistinguishable from the rape-justifying statements made by convicted rapists. It's hard for me to see how this could be harmless, both to viewers and to society at large.

With the 12-step style pathologization of individual use ascending parallel to the rapacious and exploitive pornography industry, the porn and antiporn industries seem symbiotic and mutually reinforcing, each resting on an anemic foundation of hyperbole.

Meanwhile, the few who try to explore the deeper and more nuanced cultural implications of pornography find themselves attacked. I was shocked to hear  about a tenured sociology professor getting suspended a couple of years ago for showing a progressive critique, The Price of Pleasure, which delves into the seamy underbelly of the lucrative industry. (My first thought was “Whew! Glad I didn’t get any complaints when I showed that same film in my Sexual Violence course at San Francisco State University a few years ago.”) 

Ascendancy of the “sex addiction” model

Lest we forget, Ley and colleagues’ critique is not really new. It used to be pretty well accepted among serious scientists that "sex addiction" was a bogus pop psychology invention, yet another example of the quasi-religious 12-step model being grafted onto every conceivable behavior.

Detractors hail back as far as the late 1990s, when sex therapist Marty Klein, Ph.D. wrote his prophetic essay, "Why ‘Sexual Addiction’ Is Not A Useful Diagnosis -- And Why It Matters," dissecting the politics of this social movement. More recently, Forbes writers Matthew Herper, David Whelan and Robert Langreth tackled "The Shadowy Science Of Sex Addiction." British psychologist and sex educator Petra Boynton followed up with a 2008 critical essay, "Medicalising sexual behaviour" (which includes some good links and discussion of the parallel construction of "female sexual dysfunction”; see my review of Meika Loe's The Rise of Viagra for more on that topic). 

The media hype over the sexual peccadillos of golfer Tiger Woods (which had a lot to do with cultural angst over a Black man having lots of sex with white women, blondes no less) proved a huge boon to the fledgling industry. Also lending an aura of legitimacy was the ill-fated proposal to add "hypersexuality" to the DSM-5. A training announcement for sex offender professionals on "Sexual addiction and compulsivity -- the proposed DSM-5 diagnosis of hypersexuality” mustered a veritable grab-bag of 12-step pseudoscience: Patrick Carnes' "levels of hypersexuality"; the "family of origin of a sex addict" and "co-dependence and the co-addict spouse."  And now there’s even an academic journal with the trendy title Sexual Addiction and Compulsivity.

But unless and until the data come in to establish sexual addiction as a viable scientific construct, it’s yet another example of an over-eager industry putting the cart before the horse.

*****

NOTE TO READERS: To view or participate in a vigorous, critical discussion of this topic, go to the COMMENTS section of my mirror blog, "Witness," at Psychology Today (HERE). 

The article, "The Emperor Has No Clothes: A Review of the ‘Pornography Addiction’ Model," by David Ley, Nicole Prause and Peter Finn, is part of a topical collection on "current controversies" in Current Sexual Health Reports. It may be requested from the first author (HERE).  

Related blog posts:

• Pornography and contact sex offending (Guest essay by Jon Brandt, David S. Prescott and Robin J. Wilson), Jan. 16, 2013 
• Study: Lads’ mags sound identical to rapists, Dec. 15, 2011 
• New entry in porn-rape debate, June 3, 2009 
• Child porn use not linked to contact crimes, July 30, 2009

(c) Copyright Karen Franklin 2014 - All rights reserved

Invitation to social media and ethics workshop June 7

Training by Keely Kolmes and Karen Franklin

Do you ever stop and think about your professional use of social media -- whether Facebook, Twitter, LinkedIn, email listservs, or even your own website or blog?

Hopefully, the answer is "yes."

Social media offer unprecedented professional opportunities. But maintaining one's privacy, reputation and ethical bearings can also be challenging when navigating the Internet's unpredictable currents.

Which is why my local psychological association has decided to host a training on the topic of "Ethics, Pitfalls, and Emergent Opportunities in Social Media."

I would like to issue a special invitation to all of my blog subscribers and readers to attend this continuing education workshop in the San Francisco Bay Area on Saturday, June 7. I am especially excited because I am co-presenting with Keely Kolmes, a dynamic trainer who is perhaps the foremost expert on social media for psychologists. Dr. Kolmes writes, does research, and provides consultation and training on clinical and ethical issues related to social networking and technology. Her Private Practice Social Media Policy has been internationally taught and adapted across health disciplines. She also serves on the state psychological association's ethics committee.

We will provide an introduction to digital ethics as it applies to social networking, online marketing, and other Internet activities. After reviewing research on therapist and client behavior on the Internet, we will offer guidelines for anticipating and managing problems that may arise from online activities.

We will also discuss a topic near and dear to my heart -- professional branding, and the advantages and disadvantages of websites, blogs, Twitter accounts and other types of online visibility. We plan to incorporate vignettes and encourage discussion to highlight divergent approaches to online activities in the digital age.

The event is co-sponsored by the Alameda County Psychological Association and Argosy University (the American School of Professional Psychology). It is free to members of the local chapter and Argosy students and faculty. The fee for non-members is $100 (which will be credited toward ACPA membership dues for those who join at the event) and $25 for students. Psychologists can also earn four hours of continuing education credit for this training.

The event takes places at the Argosy campus in Alameda, at 1005 Atlantic Avenue, from noon to 4:00 p.m. More information is available HERE; directions to the campus are HERE. Advance reservations are required; to reserve, email Cecelia Pena (click HERE).

How locking kids in solitary confinement became normal

I remember the first time I ever saw a child locked up in a men's prison. I was walking down the corridor of a maximum-security prison, visiting a prisoner who had been transferred there from the prison where I was working at the time. (That's a sad story for another day.)

Suddenly, I saw the face of a boy, staring out at me bleakly from a cell window. The incongruity of the boy's presence in a men's prison made me do a double-take. I stared back for a long moment into his haunted eyes. When I asked about him later, I was told that, as the only minor at the prison, he had to be locked down 24/7 for his own protection.

I remember thinking at the time that even if a minor was tried and sentenced as an adult, there should be a provision to keep him in a juvenile lockup until he turned 18, so that he would be with others his age, have access to educational programming, and not be such a target for victimization.

Fast forward to 2014, and such a sight is no longer unusual. Thousands of minors across the United States are locked up in adult prisons and county jails, and many of them are kept in solitary. Manhattan's Rikers Island, the second-largest jail in the United States, houses hundreds of minors, and roughly one-fourth are in punitive segregation at any given moment. What makes this especially appalling is that most of these minors are pretrial detainees, not yet convicted of any crime. 

Spotlight on Rikers island

Ismael "Izzy" Nazario has recently become the public face of the problem. Now 25 and a case manager for juveniles coming out of Rikers, he estimates that as a juvenile he spent about 300 days altogether in "The Box," a dreaded 6x8 cage; his longest single stay was four months. After a while, he said in a video (which has since been removed from YouTube), you start to go crazy. You pace back and forth and talk to yourself; your eyes start playing tricks on you. "Your mind becomes your own worst enemy."

Ismael "Izzy" Nazario

Nazario's experience is not unusual. According to a state report, teens in solitary at Rikers are more likely than other detained juveniles to try to harm themselves. Nationwide, more than half of detained juveniles who commit suicide do so while locked in solitary confinement.

This is not surprising. As noted by developmental psychiatrist Bruce Perry in an interview with the Center for Investigative Reporting, solitary confinement is bad for anyone -- but it is especially bad for children. And as we forensic professionals know, incarcerated children are not just any children; they are children who have already experienced major losses and traumas in their young lives. Traumas that make them more vulnerable to the deleterious effects of isolation:

"They end up getting these very intense doses of dissociative experience, and they get it in an unpredictable way. They’ll get three days in isolation. Then they’ll come back on the unit and get two days in isolation. They’ll come back out and then get one day. They end up with a pattern of activating this dissociative coping mechanism. The result is that when they’re confronted with a stressor later on, they will have this extreme disengagement where they’ll be kind of robotic, overly compliant, but they’re not really present. I’ve seen that a lot with these kids. They’ll come out, and they’re little zombies. The interpretation by the staff is that they’ve been pacified. 'We’ve broken him.' But basically what you’ve done is you’ve traumatized this person in a way that if this kid was in somebody’s home, you would charge that person with child abuse."

Being a feifdom, Rikers has steadfastly refused to allow journalistic access. But  New York City Councilman Daniel Dromm, one of the few outsiders to witness conditions in The Box, pulled no punches in labeling what he saw "torture." Dromm is campaigning for more transparency. At minimum, he wants Rikers administrators to report the number of minors locked in punitive segregation, their ages, and their infractions. “We need to unveil the secrecy," he said.

Rikers Island in the 1930s, Lucien Aigner

The international community agrees with his categorization. The United Nation classifies solitary confinement as a form of torture, prohibited for children under international law.

The correctional officers' union disagrees with this prohibition. A spokesman said outsiders just don't understand the need for force -- including punitive segregation -- to keep testosterone-fueled young men in line in "the belly of the beast."

I found that turn of phrase more than a little intriguing, coming from a correctional officer. Although the origins and meaning of the phrase are a bit murky, since the publication of Jack Abbott's prison memoir by that the title in 1981, in reference to the American prison system it is generally used to invoke a brutal and unjust system, which one opposes even from within.

But the phrase is apropros, because beastly the system is.It takes already marginalized youth and bestows the ultimate lesson in disempowerment and dehumanization. As Bruce Perry puts it, it announces to disenfranchised minors that, as a society, "we don’t care for you."

That's a harsh message, and one that these young people will have fully internalized by the time they are set back loose into society, broken or vengeful as the case may be.

The silver lining is that Rikers Island conditions are gaining traction as a symbol of the plight of children in adult correctional institutions nationwide. PBS Newshour recently highlighted the issue. And the Center for Investigative Reporting features a series of reports on the online media platform Medium.

Long-burning embers of 1990s superpredator wildfire 

But how did we ever get to the point that children are being tried and incarcerated as adults in the first place, not to mention locked in solitary confinement in adult institutions?

Not all of us are even old enough to keenly recall the 1990s hysteria surrounding juvenile "superpredators," marauding Black and Brown youth who were predicted to engulf society within a few short years if nothing was done to stop them.

This week, the New York Times produced a superb "retro report" video, documenting the history of the superpredator panic. Archived news clips bring us back to the moment when it all began, with incendiary predictions of two academics -- prominent political scientist John J. Dilulio Jr. and criminologist James Fox.

It was Dilulio who coined the term "superpredator," which invokes an animal menace in hordes of "Godless" young Black males, "a ticking time bomb" waiting to erupt; Fox added his own inflammatory rhetoric about the “bloodbath” that was just around the corner.

"And like a match to a flame, the word caught on.... Life in the 1990s [became] dominated by a sense that youth violence was out of control. The future looked bleak. To explain why, one word said it all – superpredators.... A growing wave of kids who were going to ravage the country…. The prediction was terrifying, and lawmakers cracked down on juvenile offenders."

Conservative politicians seized the moment. Aided by fears over changing racial demographics, they were able to pass harsh laws in nearly every U.S. state to allow for juveniles to be tried as adults and to exponentially increase their punishments.

Ironically, at the very moment these laws were being enacted, juvenile crime rates began their unprecedented plummet, the exact opposite of what Dilulio and Fox had predicted. The two men now admit that they were flat-out wrong. In 2012, they both went so far as to sign an amicus brief arguing against life imprisonment for children convicted of murder.

But it was too late. The punitive social climate they had ignited was like a wildfire that burned far out of control. And it's still burning across the United States, from Rikers Island to Los Angeles County and everywhere in between, consuming untold thousands of teenagers from the most vulnerable classes of society.

Hat tip: Kathleen

* * * * *

For those interested in the topic of juveniles sentenced as adults, I recommend the award-winning film Juvies.

(c) Copyright Karen Franklin 2014 - All rights reserved

Piper Kerman presents 3-point plan for prison reform

It can be fortunate for the world when a middle-class person with a social conscience gets hauled off to prison.

After spending a year in a women's prison, Piper Kerman wrote the bestselling memoir Orange is the New Black, which spawned a hit Netflix series that has galvanized the public. Now, she is jet-setting around the country, raising awareness on the U.S. prison crisis among people who have given it nary a thought up until now.

Last night, San Francisco's intelligentsia came out en masse to hear the celebrity ex-prisoner at a City Arts and Lectures benefit for an innovative university program at San Quentin Prison. The venue was the splendid Nourse Theater, a newly renovated, 1,800-seat Beaux-Arts palace that had been shuttered for decades.

Kerman did not disappoint. She remained poised and affable as her interviewer, author Nancy Mullane, peppered her with a series of alternately prurient and silly questions about sex in prison, her life as a 10-year-old, and similar drivel. It was disappointing yet illuminating to see Mullane -- who should know better, given her recent interviews with ex-convicts for her book Life After Murder -- fritter away a golden opportunity. Instead of helping Kerman express her critical message, she ogled and dehumanized her guest as an exotic "other," ironically showcasing the very disrespect of ex-convicts that Kerman has dedicated herself to combating.

It was not until the informed and perceptive audience's turn to ask questions that Kerman got the air space to expound on her vision for reforming America's prisons, which are bursting at the seams with 2.4-million members of this wealthy nation's neglected underclass.

Three transformative steps we could take to restore rationality, in Kerman's view:

1. Reform draconian sentencing laws. The harms outweigh the benefits of sentences longer than five years, especially for nonviolent crimes. Reentry becomes more difficult, harming not just the prisoner but his or her family, community and larger society.


2. Provide adequate defense services. If everyone was afforded access to zealous representation, a far smaller proportion would end up in prison. Public defender offices throughout the nation are stretched too thin, leading to unjust outcomes for the poor.


3. Stop criminalizing children. Paying attention to at-risk children and adolescents makes more sense than waiting until they have become hardened criminals and then warehousing them. And, stressed Kerman, children should never, ever be sent to adult prisons. 

A perfect agenda.

Taylor Schilling plays "Piper Chapman" in the TV series

(Of course, it assumes a degree of rationality that is absent from contemporary U.S. policies, and it is also at odds with the massive privatization movement that relies on prisoner bodies for its profits.)

Kerman also answered a couple of questions that I had been curious about, including her motivation for writing the book, and what she thought of the TV show that radically distorts her memoir.

Kerman said she is not disturbed by the liberties taken by Jenji Kohan in writing the Netflix adaptation. Going to prison is an introspective experience that can only be captured in writing, whereas a TV drama relies on interpersonal conflict to keep its audience's attention, explained Kerman, herself a theater major in college.

From Season Two, premiering June 6

In her memoir, Kerman projects herself as a typical privileged person. The young Smith College graduate fell into a relationship with an older woman who turned out to be a drug smuggler, and ended up smuggling a suitcase full of drug money across international borders. Years later, a federal indictment was handed down, and she landed in federal prison, an awkward setting for a young middle-class woman, and most especially a blonde.  

But the story she revealed last night was a bit more nuanced, and helps to explain how she ended up in her present role as a voice for justice. She was raised in a progressive, feminist household, with two teachers for parents. This likely equipped her both to get along well and make connections in prison, as she did, and to be outraged and galvanized by the inequities she witnessed.

She wrote her memoir neither as an exercise in catharsis (she didn't even keep a journal in prison, she confessed) nor to share with other prisoners and ex-prisoners (although she is happy that many of them can relate), but with the aim of reaching a mainstream audience heretofore ignorant of prison realities.

In that, she has undoubtedly succeeded beyond her wildest expectations.

* * * * *

Thanks to Lorelei for providing helpful feedback. For more background, and my reaction to the book and TV series, see my Jan. 20 post, Orange is the New Black – Read the Book!

(c) Copyright Karen Franklin 2014 - All rights reserved

Storm clouds gathering over Reid interrogation method

The detective pulled his chair closer to Joe, the mentally ill suspect sitting alongside him in the small, windowless room. Joe kept denying that he had killed his mother, but the detective wasn’t buying it. Looking Joe straight in the eye, he leaned in and said:

“Look, Joe, your mother was a cancer. Think about all of the bad things you told us she did. She hurt people. You should be proud of what you did. Seriously! She was a problem, and you eliminated that problem. That was the right thing to do. It took a hell of a lot of courage. I'm sure other people in the family were fed up with her, too, but they didn't have the balls to do what you did."

Does this sound like a far-fetched thing for a cop to say to a criminal suspect, especially about his own mother?

Well, it isn't. This is an almost-verbatim transcription that I made from the audiotape of the interrogation.

After being involved in dozens of similar cases, the gambit was no longer shocking to me. It comes from the Reid method that is now used almost universally by American police. The idea is to offer the suspect a rationale that minimizes his moral culpability for the offense – while carefully avoiding any minimization of legal responsibility.

Critical awareness growing over flawed Reid technique

The Reid technique, the brainchild of John E. Reid and Associates, is fundamental to modern interrogation techniques. But it’s getting greater scrutiny in recent years thanks to growing awareness of the problem of false confessions. Of the convicted people who have been conclusively cleared by DNA evidence, about one out of four had confessed to the crime – often due to clever ruses designed and promoted by the Reid school. The case of the Central Park Five, featured in an excellent book as well as a powerful new documentary, is one such case.

Adrian Thomas in interrogation room

Another alarming case getting critical attention at the moment is that of Adrian P. Thomas, who was interrogated for 10 hours by police in upstate New York while his infant son lay in the hospital, misdiagnosed with a skull fracture. The detectives pulled out all the stops, lying to him about the evidence, threatening to arrest his wife, promising him leniency, speculating about “repressed” memory, and adding a sense of urgency by saying the doctors needed information from him in order to save his dying son.

Thomas ultimately confessed to a crime that probably never happened at all. Both the doctor who contacted police and the county medical examiner had failed to detect the massive blood and brain infection that likely killed the youngster. Although Mr. Thomas almost immediately recanted his confession, it was too late; the damning videotape was played almost in its entirety at his trial.

Thomas, who is African American, was convicted after the trial judge refused to let defense expert witness Richard Ofshe testify about the psychological tactics that can cause an innocent person to confess.

The case was the subject of a critically acclaimed, jaw-dropping documentary, Scenes of a Crime, which I highly recommend. Just last month, after the release of the film, New York’s highest court overturned Mr. Thomas’s conviction, calling the interrogation procedures “coercive” and the confession “involuntary.” Thomas faces a retrial at which the confession will be excluded, leaving no evidence connecting him to a crime.

New Yorker exploration

The latest critical attention is a lengthy essay in the influential New Yorker magazine. Author Douglas Starr describes his adventure undergoing the Reid training, and presents critical research casting doubts on both the fairness and the accuracy of the method.

The essay, which I highly recommend for anyone interested in the topic, explores the research of leading academics including Saul Kassin, Richard Leo, Aldert Vrij and Melissa Russano. These scholars agree that the Reid method is great at eliciting self-incriminating statements, but not so good at distinguishing true confessions from false ones. 

Kassin, a prominent expert and a frequent media critic, believes the Reid Technique is inherently coercive. As Starr explains his position:

“The interrogator's refusal to listen to a suspect's denials creates feelings of hopelessness, which are compounded by the fake file and by lies about the evidence. At this point, short-term thinking takes over. Confession opens something of an escape hatch, so it is only natural that some people choose it.”

Time to move on?

Just as psychologically coercive techniques replaced the physical coercion of the olden days’ “third degree,” even within the U.S. law enforcement community some think that the Reid technique has outlived its time. 

In Britain, Canada and some other countries, police have switched to less coercive interviewing procedures, such as PEACE, which stands for Preparation and Planning, Engage and Explain, Account, Closure, Evaluate.

The method is radically different, in that rather than trying to entrap a suspect using falsehoods and psychological ploys, the detective approaches the interview almost like a journalist, asking open-ended questions to get the whole story, and then following up by going back over the story looking for inconsistencies.

Although some U.S. law enforcement leaders are working to develop similar approaches, Kassin told Starr he is skeptical of wholesale change: “The culture of confrontation, he feels, is too embedded in our society.”

I tend to agree. If anything, as in the example at the outset of this post, I am seeing the Reid techniques taken to more and more extreme levels. That's probably the results of courts' tacit encouragement, in refusing to ban deceit and in the watering down of suspects’ Miranda rights until they are a joke.

Sadly, police interrogations these days often look and feel more like cynical game-playing than a process with any integrity. For that, Lady Justice weeps. 

* * * * *

Related blog posts:

• Damning reconstruction of notorious false confession case (March 29, 2012)

• The taint of a false confession: Ripple effects bias parties, contaminate "independent" evidence (Sept. 30, 2012)

• Police psychologist settles confession suit for $1 million (Nov. 16, 2010)

• Historical review of false confessions (Nov. 8, 2010)

• Police interrogations: AP-LS issues landmark white paper: Boy's "psychological torture" points to need for reform (March 14, 2010)

• Norfolk sailors receive partial pardons (Aug. 7, 2009)

• Book review: The Wrong Guys (April 6, 2009)

• Treating therapist as police interrogator (Nov. 30, 2008)

• The case for videotaping interrogations: Detective's candid call for reform (Oct. 29, 2008)

• "Police Interrogation and American Justice" (Feb. 7, 2008)

• Canada: How false confessions occur (Nov. 27, 2007)

• Guest report: Interrogations & Confessions Conference, El Paso, Texas (Oct. 4, 2007)

(c) Copyright Karen Franklin 2014 - All rights reserved

Federal judge calls Minnesota civil commitment program “draconian”

State lawmakers remain in paralysis as judge threatens action

This is one in a series of on-the-ground reports from clinician Jon Brandt of Minnesota on the high-profile legal battle over the civil commitment of sex offenders in his state, a battle with potentially national repercussions. 

 

Guest post by Jon Brandt, MSW, LICSW*

Three weeks ago, a federal judge issued his long-awaited ruling in a civil rights case brought by civil detainees over the constitutionality of the Minnesota Sex Offender Program (MSOP). Although stopping short, for now, of declaring the program unconstitutional, the judge ordered new procedures to make release attainable for the 700 detainees. He warned that he may ultimately find the program to be unconstitutional if he determines that it is essentially punitive or if it confines men who are no longer dangerous. “The time for legislative action is now," wrote US District Judge Donovan Frank.

Now, in mid-March, with about eight weeks left in a short legislative session, Minnesota lawmakers are indicating that they are not likely to find bipartisan support to accomplish the reforms demanded by the federal court. If the state legislature adjourns without taking action, it seems likely that the US District Court will impose federal oversight.

Withholding "unconstitutional"

Fully aware that he is knee-deep in constitutional law and up to his neck in public antipathy, Judge Frank’s Feb. 20 ruling in Karsjens v. Jesson is a demonstration of judicial restraint. Judge Frank expressed several times in his 75-page decision that it is too early, in what will be protracted litigation, to rule on the constitutionality of any part of MSOP. However, his ruling leaves little doubt that he will hold the status quo to be an unconstitutional encroachment on civil liberties:

"[I]t appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence. … If, with the benefit of discovery, [the detainees] are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims."

Over the past two decades, more than 700 sexual offenders, deemed dangerous by state courts, have been sent to the program for treatment. Once there, detainees complain, disingenuous treatment and onerous program goals make release virtually impossible.

Judge Frank’s ruling appears to vindicate widespread complaints over conditions of confinement and concerns of civil liberties violations. Noted the judge:

"Whether or not the system is constitutionally infirm, without prompt action on the part of the legislature and [the state Department of Human Services], MSOP’s reputation as one of the most draconian sex offender programs in existence will continue."

Right to treatment?

Detainee at Moose Lake detention facility in Minnesota

If the position of the detainees can be reduced to the maxim that “no one has ever gotten out,” perhaps the State’s (defendant’s) position can be oversimplified to, “MSOP clients have no constitutional right to treatment.”   Judge Frank begged to differ with this latter position, expressing that legitimate treatment is, by judicial precedent, one of the essential constitutional underpinnings of civil detention programs for sex offenders (as distinct from criminal punishment). Judge Frank more than hinted at an ultimate finding in support of the detainees’ position, saying:

"Given the prison-like conditions described by Plaintiffs, and the lack of treatment and essentially no-exit regime alleged in this case, it may well be that, with a fully developed record, the Court will find the totality of the MSOP system to be unacceptably and unconstitutionally punitive."

He noted that it would be unconstitutional, under existing U.S. Supreme Court rulings, to operate a civil commitment program under the guise of providing treatment, if this is just “a sham or mere pretext,” and the true purpose is to punish.

Landmark ruling

Judge Donovan Frank

In his ruling, Judge Frank issued a landmark change, effectively shifting the burden of proof on how clients exit civil detention. Prior to this ruling, in order to gain release, detainees had to clear several tall hurdles. They had to prove they had completed the treatment program, demonstrate their readiness for community re-entry, and get the green light for release from two review panels. Under that scheme, in 20 years only two of more than 700 men gained even a conditional release. Citing substantial case law and programs in other states, Judge Frank turned that process upside down:

“It is unquestionable that commitment, at the outset, must be justified by law. Similarly, … continued commitment must also be justified. A statute that -- as written, as applied, or as implemented -- renders discharge from a sex offender civil commitment program more onerous than admission to it, such that individuals who no longer meet commitment criteria remain confined, raises grave due process questions. In that regard, the Court expresses serious doubts as to the constitutionality of Minnesota’s sex offender commitment statutes and their implementation through MSOP.

“Today, the Court finds that it is constitutionally mandated that only individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates that MSOP systematically continues to confine individuals who are not 'a real, continuing, and serious danger to society,' then such confinement will be held unconstitutional."

State government paralyzed

A powerful amicus brief filed jointly by law professor Eric Janus and the ACLU of Minnesota is highly critical of the Minnesota program. Laying out relevant case law, the Brief claims that all three branches of Minnesota’s government have abdicated responsibilities for ensuring the program’s tenuous promises. The Brief observes that after the Federal Court advised the State Legislature in 2012 that urgent changes were needed, the 2013 Legislature failed to act; by executive order, the last two Minnesota Governors put constitutionally questionable moratoriums on releases; and state appellate courts have repeatedly failed to correct program deficiencies. 

Citing “massive deprivations of liberties,” and accumulating evidence that civil detention is punitive in nature, the Brief refers to the Minnesota experiment as an “utter betrayal.” If -- as now appears likely -- another legislative session expires without lawmakers taking action, there is little doubt that the federal court will intervene, perhaps as it did in the State of Washington .

Change coming to MSOP

To reassure, it is not the intent of this legal challenge that dangerous individuals be released into the community. Reforming MSOP is clearly a forensic minefield and Judge Frank has been deliberate in navigating solutions. Drawing on a critical 2011 report from the Minnesota Office of the Legislative Auditor, he appointed experts to conduct an initial review of MSOP. He also ordered the state’s Department of Human Services to assemble a Task Force of prominent stakeholders to explore program challenges and make recommendations. The Task Force issued their first report in December 2012 and their second report in December 2013.

In December 2013, in anticipation of his ruling, Judge Frank wisely appointed a team of four nationally recognized experts (identified in this previous blog) to help credibly guide the process. He asked both parties to the lawsuit, and the experts themselves, to identify the tasks and goals to which the “dream team” should endeavor, and then, leaving no doubt that change is coming to MSOP, Judge Frank’s order exceeded the cumulative list, and established priorities.

In addition to a complete review of the MSOP program, Judge Frank indicated that all current detainees will be reevaluated by independent experts to determine whether they currently meet criteria for civil commitment and, if so, whether they could be treated in less restrictive settings. He ordered reevaluations to begin with those likely to be most eligible for a reduction in custody. He even threw a bone to the 100 or so discouraged (or obstinate) detainees who have withdrawn from treatment:

“It defies reason that individuals who are comatose or otherwise completely incapacitated would be considered so dangerous as to require continued confinement in a secure, prison-like facility. Moreover, an individual who refuses to participate in treatment, but is no longer dangerous, cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77.”

Judge Frank directed his final admonition to state administrators and the Minnesota Legislature, which just convened its 2014 session, stating that the time for “substantial changes” is now:

“If the evidence requires it, the Court will act. But it is the Minnesota Legislature that is best equipped to develop policies and pass laws -- within the limits of the Constitution -- that both protect public safety and preserve the rights of the class. The time for legislative action is now. Time and again, professional assessments have identified grave deficiencies in the program. Regardless of the claims raised in this case, and irrespective of the Court’s ultimate rulings on any constitutional questions with which it is presented, the interests of justice require that substantial changes be made to Minnesota’s sex offender civil commitment scheme.

“The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.”

In reserving a ruling of “unconstitutional,” Judge Frank has been shrewd in attempting to force Minnesota’s government leadership to the table.   If state leaders acknowledge the federal court directives, seize good research, understand the limits of forensic psychology, and muster the professional courage to marshal bold legislative initiatives, Minnesota could potentially develop a national model for the civil commitment of sex offenders. If not, Judge Frank has left little doubt that the US District Court for Minnesota will rebalance legitimate concerns of public safety, effective treatment, and civil liberties for those under civil commitment.

Either way, these proceedings are likely to contribute to the national debate about whether civil commitment can be effectively reconciled with sound public policy and constitutional law, or whether civil commitment schemes, now in place in 20 U.S. states, are fundamentally “preventive detention,” derived from “society’s opprobrium” of sexual offenders.

* * * * *

Judge Frank’s  ruling (HERE) is a compelling read for anyone interested in the civil commitment of sex offenders.

*Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He provides evaluations, treatment, and supervision to sexual offenders, and professional consultation and training to colleagues. His previous post on this case, a report on the December 2013 federal court hearing, can be found HERE. To contact Mr. Brandt, click HERE.